Live larvae in an unexpired Shuanghui sausage: why the offer of RMB 100 falls short

Background

A woman recently posted a video on social media reporting that on 12 September her husband had found live insects in a Shuanghui Wangzhongwang sausage. As soon as it was opened, many small white larvae were seen crawling on the meat and on the inside of the packaging. She then checked the production date printed on the skin of the sausage and confirmed that it was still within its shelf life. She immediately called the 400 complaints line printed on the casing and spoke to the manufacturer.

The manufacturer replied that the next day was the Mid-Autumn Festival and that the matter could only be dealt with afterwards. It was not until the morning of the 18th, by which time the larvae had turned into pupae, that a Shuanghui salesman contacted her. He said the company could pay only RMB 50, which she rejected outright. He then said he would report the matter to his superiors to see whether any other solution was available. The next day he said his superiors had approved compensation of RMB 100. Further approaches to the manufacturer came to nothing, and the two sides are still negotiating.

How should she protect her lawful rights?

In this case the salesman said that the sausages are treated at several hundred degrees during production, so that insects and other organisms cannot survive, and that because the sausages are in soft packaging the bag may be punctured during transport or storage. In other words, his position is that the presence of insects has nothing to do with the manufacturer and must have arisen in transport or at the point of sale. Faced with that response, how should the customer protect her lawful rights?

Article 148 of the Food Safety Law of the People's Republic of China provides that a consumer who suffers harm from food that does not meet food safety standards may claim damages from the seller or from the producer. A producer or seller that receives such a claim must apply a first-liability rule and pay first, without passing the claim on; where the liability lies with the producer, the seller may recover from the producer after paying, and where it lies with the seller, the producer may recover from the seller after paying. Where a producer makes food that does not meet food safety standards, or a seller knowingly sells such food, the consumer may in addition to damages claim compensation of ten times the price paid or three times the loss; where the enhanced compensation is less than RMB 1,000, it is RMB 1,000. This does not apply where a defect in the label or instructions does not affect food safety and does not mislead the consumer.

So where we buy food that does not meet food safety standards and suffer loss to property or person, we may claim damages either from the seller, such as a convenience store or supermarket, or from the producer. Whichever of them receives a reasonable claim must pay the consumer first and must not pass the claim on, regardless of whether the quality problem originated with the producer or the seller.

Food safety problems recur: how can consumers protect themselves?

Food safety problems have kept arising in recent years. The commonest situations consumers meet are buying food that has expired or gone bad, or finding foreign objects in it. What can be done in such cases?

1. Keep the proof of purchase and preserve the evidence. A mobile phone can be used to photograph or film the product at issue. Such evidence is needed both when negotiating with the seller or producer and later in arbitration or litigation.

2. Where eating expired or spoiled food causes health problems and medical treatment is sought, keep the hospital records and the receipts for medical expenses, for use in a later claim.

3. Contact the seller or producer promptly to negotiate. Record or film the negotiation as well, and if the seller or producer admits that the product is defective, have that confirmed in writing or in another form; if they dispute the quality problem, ask the quality inspection authorities to carry out an appraisal without delay.

4. Where negotiation fails, seek help from the relevant authorities at once, for example by calling the consumer complaints hotline 12315 or the unified food and drug complaints hotline 12331. It is also possible to ask a consumers association to mediate and to complain to the industry and commerce authorities.

5. Finally, if none of this resolves the matter, proceedings may be brought in a people's court.